An Introduction to Climate Change Litigation

Climate change litigation is an umbrella term that may be used for any lawsuit broadly connected to climate change.

One example are lawsuits brought by individuals, cultural minority groups, indigenous peoples or environmental non-governmental organizations (ENGOs) against a federal state or a sub-state/province, seeking stricter climate protection measures. Such lawsuits can target a specific law, program or policy which the litigants deem to be insufficient. In the absence of such a law, program or policy, litigants may seek an order by the court to force the legislature or government to enact climate legislation and reduce greenhouse gas emissions.

Another example are motions for judicial review of particular projects, such as the expansion of an oil pipeline, construction of an airport or highway, or authorization to extract natural resources, which are claimed to negatively affect the climate.

Lawsuits against private companies (particularly oil or energy companies), aiming to force them to reduce their carbon footprint, are another example of climate change related litigation.

On the other hand, companies or individuals file lawsuits against a federal or state government challenging climate regulations which they deem to be too strict.

 

Climate change litigation has boomed in recent years, with new cases being brought weekly in different countries around the world.

The United States has been at the forefront, with more than a thousand lawsuits relating to climate change pending or adjudicated (material on US cases can be found on the website of Columbia University's Sabin Center for Climate Change Law).

Other countries which have seen large numbers of climate change related cases are Australia, the United Kingdom, New Zealand and Canada. Litigation is also advancing in countries of the global South such as India, Pakistan and Brazil (statistics and material on climate change litigation outside the USA can be found on the website of the Grantham Research Institute on Climate Change and the Environment).

 

During the early days of climate change litigation, few people may have believed that such cases can ever be successful in courts of law, or that they can have any substantial impact on a country’s climate policies.

In recent years, however, litigants have achieved significant victories.

One of the earliest, and still probably the most well-known success by climate litigants is the decision of the Dutch Supreme Court in the so-called Urgenda case. Urgenda is an ENGO which sued the government over its allegedly insufficient climate policy, asking the court to order the government to reduce the country’s greenhouse gas emissions.

In a ground-breaking decision, the Hague District Court in 2015 found in favor of Urgenda, issuing the order against the government. While the Dutch government appealed the decision, it announced at the same time that it would comply with the court order and initiate a new climate program in order to achieve a 25% reduction of greenhouse gases by 2020. Subsequently, both the Hague Court of Appeal in 2018, and finally the Dutch Supreme Court in 2019, upheld the decision by the first instance court.

This case now provides a major precedent for litigants around the world challenging their government’s insufficient climate change policies.

Other litigants have gained significant victories in judicial challenges of permits for infrastructure projects.

Some of the most innovative legal challenges and responses by courts in fact originate from countries of the global South. For example, the Supreme Court of Colombia has recognized a constitutional right to a healthy environment and ecosystem, which is derived from the right to life, health, minimum subsistence, freedom, and human dignity. Beyond this, the Court has also recognized that nature itself can be the subject of rights. In the Philippines, the Commission on Human Rights reacted to a petition by Greenpeace Southeast Asia and started an investigation of 50 global corporations responsible for a large share of the world’s greenhouse gas emissions, inviting those corporations to respond to the allegation that they were violating the rights of the Filipino people.

Categories of climate change litigation

Climate change related lawsuits can be categorized in a variety of ways, such as by region/country/jurisdiction, parties to the lawsuit, type of claim, sources of legal rights, or remedies sought.

For the purpose of this project, we have chosen the categorization below, because we think that it is the easiest way for readers to access the different forms climate litigation can take. Please click on the links to access more information and summaries of cases in the respective categories.

When reading other material on climate change litigation, you will most likely find different ways of categorizing cases.

Cases against legislatures and governments to enforce stricter climate policies

Some litigants have sued federal or sub-state legislators and/or governments for their insufficient efforts to tackle climate change, with the goal of enforcing stricter climate policies.

Such cases can take on different forms.

Where climate-related legislation, a climate program or policy already exists, but litigants deem this to be insufficient, they may challenge the specific law, program or policy in court (this is sometimes called a negative challenge).

If such a challenge is successful, the court will quash or declare the legislation, program or policy invalid. This does not, however, automatically mean that the legislator or government is required to enact new or different climate laws, programs or policies which are designed to achieve a higher greenhouse gas reduction target.

Such an obligation may follow from a national law, such as in Friends of the Irish Environment CLG v. Ireland (see below), or even from the Constitution, such as in the German Klimaklage (see further below).

Friends of the Irish Environment CLG v Ireland

An example of the first category of negative challenges of an existing program is the case of Friends of the Irish Environment CLG v. The Government of Ireland, Ireland and the Attorney General.

What were the government’s obligations?

The Irish Minister for the Environment, Community and Local Government is tasked, under the Climate Action and Low Carbon Development Act, 2015, to create a National Mitigation Plan and submit it to the government for approval. The Plan is to be revised at least every five years. The applicant Friends of the Irish Environment successfully challenged the first Plan, issued in 2017, for being too unspecific and not being able to achieve the national objective, which is a transition to a low carbon, climate resilient and environmentally sustainable economy by the end of the year 2050.

What would follow if the policy was quashed?

The Climate Action and Low Carbon Development Act, 2015, requires the Minister to enact a National Mitigation Plan at least every five years. After the quashing of the 2017 Plan, the Minister is thus under a legal obligation to issue a new plan and obtain approval by the government. In doing so, the Minister will have to take into account the considerations undertaken by the Supreme Court, as otherwise it can be expected that any new Plan will be challenged in court and quashed again.

Did the case succeed?

The case was based on the National Mitigation Plan being in violation of higher ranking national law, namely the Climate Action and Low Carbon Development Act, 2015. The applicant additionally based their claim on constitutional rights as well as fundamental rights under the European Convention on Human Rights (ECHR). However, these challenges were rejected by the Irish Supreme Court due to a lack of standing of the applicant. In other cases, claims were successfully based on domestic and/or international human rights norms.

 

In other cases, claims were successfully based on domestic and/or international human rights norms (see under “Legal Basis” – “Fundamental Rights”).

On the other hand, where no climate-related legislation, program or policy exists yet, litigants may ask the court for an order against the legislature or government, mandating them to enact such legislation, program or policies to achieve a certain level of greenhouse gas reduction (this is sometimes called a positive challenge).

Urgenda

The pioneering Dutch Urgenda case, already mentioned above, constitutes such a positive challenge with the aim of ordering the government to adopt the necessary policies in order to achieve a national reduction in greenhouse gases of at least 25% by 2020, compared to the 1990 baseline year.

Urgenda relied on a provision in S. 162 of the Dutch Civil Code, which stipulates that a person who commits a tort towards another must repair the damage which the other person suffers as a consequence thereof. This provision has been interpreted by Dutch courts to establish an unwritten duty of care of the State.

Urgenda argued – successfully – that this duty of care must be interpreted in light of the rights and duties under the European Convention on Human Rights (ECHR). Climate change is threatening to violate Dutch citizens’ right to life under Art. 2 ECHR as well as their right to respect for private and family life, home and correspondence under Art. 8 ECHR.

The Hague District Court, and on appeal the Hague Court of Appeal, as well as the Supreme Court of the Netherlands, all found that the Dutch state is under a duty to do its fair share to protect its citizens’ rights from the consequences of climate change. This requires the Dutch State to contribute a greenhouse gas emissions reduction of at least 25% by 2020.

Leghari v. Federation of Pakistan

Another notable decision is the judgment by the Pakistani Lahore High Court Green Bench in Leghari v. Federation of Pakistan in 2015.

The Court found that the Federal Government and the Government of Punjab had violated fundamental rights due to their delay and lethargy in implementing the county’s Climate Change Policy Framework. Rather than mandating a specific amount of greenhouse gas reduction to be achieved by the government, as was the case in Urgenda, the Lahore High Court ordered several government ministries to each nominate a climate change focal person to help ensure the implementation of the Framework, and to present a list of action points that can be achieved by December 31, 2015.

The Court further ordered the creation of a Climate Change Commission with representatives of key ministries, NGOs, and technical experts, to assist the Court in monitoring progress in implementation of the Framework by the Dec 2015 deadline.

Sometimes, cases fall in between the categories of “negative” and “positive” challenges. For example, litigants may challenge an existing law, program or policy because they claim that higher-ranking law – such as the constitution or international human rights norms – in fact require the legislator and government to enact stricter legislation, programs or policies.

An example is the German climate case (“Klimaklage”), also known as Neubauer, et al. v. Germany.

Klimaklage (Neubauer, et al. v. Germany)

The plaintiffs in this suit challenged certain provisions of the Federal Climate Change Act, which prescribed emissions reductions for the German state to achieve by the year 2030. The plaintiffs argued that these reduction targets were too weak, and that instead the constitutional right to life, physical integrity, property and the right to choose one’s occupation required the legislator to set stricter reduction targets.

The Constitutional Court rejected that claim, but instead found the Climate Change Act to be unconstitutional on a different consideration. By postponing too much of the emissions reduction burden to post 2030, the legislator had created a real risk that the plaintiffs would face severe restrictions of their constitutional freedoms in the future in order to achieve these reductions. Since this risk could no longer be diverted in the future, the law violated the constitutional rights of the plaintiffs already at present.

The outcome of such lawsuits always depends to a large extent on national law, even where the litigants rely on international human rights norms. Therefore, very similar legal challenges to those described above have failed in other jurisdictions. An example is Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others.

Union of Swiss Senior Women v Swiss Federal Council and Others

In Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others, the Swiss Department of Environment, Transport, Energy, and Communications (DETEC) rejected a request to increase greenhouse gas reduction measures made by a group of senior women claiming a unique health-based vulnerability to climate change-induced heat waves. 

Similar to  Urgenda, the applicants had asked to order the government to achieve a 25 % greenhouse gas emission reduction by 2020. The DETEC rejected the request, holding that the petitioners did not face a threat to their individual rights.

An appeal to the Federal Administrative Court was rejected on the basis that senior women are not the only population group affected by climate change and the injury was therefore not specialized to the petitioners. On May 20, 2020, the Supreme Court denied the further appeal.

Litigation is mostly directed against the federal government, but can also target the government of a state, province or sub-state division. Furthermore, supranational organizations such as the European Union can be targeted by climate litigation if these organizations have the competency to regulate greenhouse gas emissions.

For summaries of specific cases, please follow these links:

Cases against federal legislature or government

Cases against provincial / state legislature or government

Cases against supranational organizations

Cases against specific legislation or policies which do not provide sufficient protection

Under this header, we summarize litigation targeting specific legislation or policies, such as sectoral policies, which the plaintiff deems to be insufficient and to provide insufficient protection from the threats of climate change.

Sabo and Others v. Parliament and Council (EU Biomass Plaintiffs v. European Union)

In Sabo and Others v. Parliament and Council the applicants challenged provisions of the Renewable Energy Directive which includes biomass energy as a renewable energy source in spite of its significant carbon footprint. They argue that the Directive’s forest biomass-related provisions fail to comply with the EU’s own principles for environmental policy and that the Directive violates their individual rights under the Charter of Fundamental Rights of the European Union.  

The European General Court and, on appeal, the European Court of Justice declared the action inadmissible because the plaintiffs were not individually affected, therefore lacking standing to bring the claim.

Another example is a lawsuit brought by Greenpeace and over 8,000 individuals against Austria, alleging that the government’s tax structure makes it cheaper to fly than take the train, thus contributing to the emission of greenhouse gases. In the Philippines, a group of plaintiffs sued the government over its failure to provide adequate space for pedestrians and bicycles.

Judicial review of projects or permits

Litigants are increasingly challenging governmental permits in court because the permit allegedly does not consider the effects of the project on climate change. This includes, among other things, infrastructure projects such as airports, motorways or pipelines, extraction of natural resources, electricity generation, or other operations that cause large amounts of CO2 emissions.

Plan B Earth and Others v. Secretary of State for Transport (re Heathrow Airport expansion)

In Plan B Earth and Others v. Secretary of State for Transport (re Heathrow Airport expansion), the applicants challenged a National Policy Statement in support of the extension of Heathrow Airport (the “ANPS”). The ANPS is not yet a permit, but a pre-assessment which sets the policy framework for a later permit application. The applicants alleged that the ANPS did not take account of the UK’s emissions reduction commitment made under the Paris Agreement.    

While the first instance High Court dismissed the claim, the Court of Appeal sided with the applicants and declared the ANPS unlawful. It found that while the Secretary of State had based its decision on the UK’s emissions reductions targets in the Climate Change Act 2008, it should have also taken into account the more far-reaching targets of the Paris Agreement. 

However, the Supreme Court overturned the Court of Appeal, holding that the ANPS was not unlawful and that new scientific developments could still be considered during the permitting procedure.

In a similar case, In re Vienna-Schwechat Airport Expansion, the Austrian Federal Administrative Court quashed the government’s approval for construction of a third runway at Vienna airport because the development would be contrary to Austria’s national and international obligations to reduce greenhouse gas emissions. However, the Austrian Constitutional Court overturned the decision.

Anti-regulatory litigation

A different aspect of climate change related litigation are lawsuits, mostly brought by large corporations, against legislation or policies which the litigants deem too strict. Especially in the United States, a large wave of such anti-regulatory litigation has been brought against policies and regulations passed by the Obama administration.

Lawsuits against private companies

A rather new trend in climate change litigation are lawsuits by individuals, indigenous peoples or ENGOs, but also by states or municipalities, against private companies, typically the so-called “carbon majors” which are responsible for a large share of greenhouse gas emissions. Such lawsuits are usually based on tort law and seek compensation for damages caused by climate change or costs incurred for necessary adaptation measures to prevent such damage.

Native Village of Kivalina v. Exxon Mobile Corporation and others (United States)

One of the earliest such cases in the United States was Native Village of Kivalina v. Exxon Mobile Corporation and others, filed in 2008 by an Inuit community seeking compensation for damages occurring from the erosion of sea ice which traditionally protected their native village.

The first instance District Court dismissed the case because liability for damages from climate change constituted a political issue which, under the political question doctrine, was deemed non-justiciable by courts.

The Ninth Circuit Court upheld the dismissal on the basis of the so-called displacement doctrine, holding that the government had already adopted regulations with regard to climate change in the Federal Clean Air Act, which displaced any possible tort claims under federal common law.

The Supreme Court denied the applicants’ petition for a writ of certiorari without comment.

Milieudefensie et al. v. Royal Dutch Shell plc. (Netherlands)

It was again the Netherlands which made history when the Hague District Court in May 2021 found that Royal Dutch Shell plc. was in violation of the standard of care under Dutch law and ordered the company to reduce its greenhouse gas emissions by 45% by 2030, relative to 2019’s levels.

The claim was based on the same provision of the Dutch Civil Code as the Urgenda case (see above), which stipulates that a person who commits a tort towards another must repair the damage which the other person suffers as a consequence thereof. The 45% emissions reduction applies across all activities in relation to the Shell group, including both its own emissions and end-use emissions (in other words, all emissions from the use of the oil it produces). 

Lliuya v. RWE (Germany)

In Germany, a case is currently pending in which a Peruvian farmer is suing the RWE corporation, Germany’s largest electricity producer and one of the world’s major carbon emitters, for damages in relation to climate change.

The plaintiff, Luciano Lliuya, lives in the City of Huaraz, Peru, which is located below a glacial lake. Due to global warming and melting glaciers, this lake is increasing in volume, threatening to flood the plaintiff’s home. 

The plaintiff sued RWE for a portion of the costs for establishing flood protection, which is equivalent to the percentage of RWE’s contribution to global greenhouse gas emissions.

The first instance court dismissed the claim, acknowledging that RWE was only one of many contributors to emissions responsible for climate change. Even if RWE ceased emitting, climate change and the threat to the plaintiff’s home could not be stopped. 

However, the court of appeal did not find the claim to be so easily dismissable. Instead, it proceeded to hear scientific evidence on RWE’s contribution to climate change and its causality for the flooding of the lake.

Greenpeace Southeast Asia et al. (Philippines)

Note should also be taken of a petition filed by Greenpeace Southeast Asia and numerous other organizations and individuals with the Philippine Commission on Human Rights.

The petitioners asked the Commission to investigate the human rights implications of climate change, and more specifically whether investor-owned carbon majors have breached their responsibility to respect the rights of Filipino people. The Commission found that major fossil fuel companies could be held liable for climate change impacts under existing civil law in the Philippines.

Climate Activists / Divestment / Miscellaneous

Civil, criminal and administrative trials against climate activists and protesters for trespassing, obstructing public order or resisting police are also gaining ever more importance.

Credit Suisse

In the Swiss case of Credit Suisse, decided in January 2020, several climate activists were charged with trespassing and fined 21,600 Swiss Francs for occupying a Credit Suisse branch and staging a tennis match in order to protest the bank’s fossil fuel investments and pressure tennis star Roger Federer to end his sponsorship arrangement with the institution.

A Swiss judge subsequently found that because of the imminent danger of the climate crisis, the protesters had acted proportionately. The judge referred to the insufficient measures taken to date in Switzerland, holding that there is an imminent danger of global warming, and thus waived the fine against the activists.

At the same time, criminal charges are being brought against those responsible for emitting greenhouse gases and pursuing state policies detrimental to the environment.

The Planet vs Bolsonaro

A very interesting advance was made by the South African environmental group AllRise which has submitted a formal complaint to the International Criminal Court (ICC) in The Hague against Brazilian president Bolsonaro. The complaint alleges that Bolsonaro pursues a state policy deliberately attacking Environmental Defenders, which amounts to crimes against humanity as per Art. 7 of the Rome Statute of the ICC.

Read more about the complaint here.

Related to the climate crisis are also numerous refugee claims brought by people whose homes have become, or are doomed to become, destroyed or unlivable due to climate related extreme weather events. We have summarized some of these cases in our special topics section here.

Legal Basis

Climate change litigation is based on various different types of claims. Litigants have to navigate a certain national (or sometimes international) legal system and work with the norms of that legal system. A type of claim which is available in one legal system might not be available in another one, or might be less encompassing.

For example, the Dutch Urgenda case (see above) was based on a provision of Dutch tort law which stipulates that a person who commits a tort towards another must repair the damage which the other person suffers as a consequence thereof. Dutch courts have interpreted this provision to establish an unwritten duty of care of the State. Other jurisdictions may not have such a tort clause, or their courts may interpret it in a more narrow way.

Many claims are based on fundamental rights. Those may be rights derived from the national constitution (or even from a sub-state constitution). The German Klimaklage (Neubauer, et al. v. Germany), for example, was mainly based on fundamental rights and freedoms protected by the German constitution, such as the right to life and physical integrity, protection of property and human dignity.

Other claims are based on international human rights norms, for example those of the European Convention on Human Rights. This is the case, on the one hand, where litigants bring a claim directly with international tribunals such as the European Court of Human Rights. On the other hand, litigants may bring claims in national courts and base them on international human rights norms if their jurisdiction does not have its own code of human rights (such as the United Kingdom), or if the national code of human rights is less extensive than international human rights norms. Yet another possibility is that the national jurisdiction has a code of human rights, but the national courts do not have the competency to adjudicate violations of these fundamental rights. The latter was  the case in the Dutch Urgenda case. While the Netherlands have a code of human rights, Dutch courts do not have the competency to review whether acts of Parliament comply with it, and thus declare such acts of Parliament invalid. However, courts may declare legislation invalid if it violates international law. For this reason, the litigants in Urgenda based their claim on norms of the European Convention of Human Rights, rather than on Dutch human rights norms.

Some jurisdictions recognize claims based on the so-called Public Trust Doctrine. This doctrine mandates the state to protect certain resources for public use and for the benefit of future generations. Litigants, especially in the United States, but also in Canada and other countries, have argued that the climate is a public trust which states are obliged to protect.

If you would like to know more about certain claims that litigation is based on, and find cases in which this claim has been argued, follow the links below:

Litigation by jurisdiction

You can also access cases by jurisdiction. At the moment, we provide information on selected cases from the following jurisdictions:

Belgium

  

Canada

 

Germany

 

Ireland

 

Netherlands

 

South Africa

 

Switzerland

 

United Kingdom

  

United States of America

European Union

 

Definitions

For a list of climate change litigation-related definitions, click here.

Special topics

Under this section, we give an overview of special topics related to climate change litigation.

Check out our article on Climate Refugees here.

Helpful resources

An overview of climate change litigation is provided by the United Nations Environment Program (UNEP) in its Global Climate Litigation Reports 2017 and 2020.

The Sabin Center for Climate Change Law maintains a database of climate change litigation around the world, where you can find original court decisions and documents, as well as case summaries.

The London School of Economics’ Grantham Research Institute on Climate Change and the Environment also maintains a database of non-US climate change litigation with original court decisions and documents, as well as case summaries.

We would like to acknowledge that this website was established using resources from the above-named sources.